Gordon v. The City of New York Police Department 84th Precinct et al

Filing 62

ORDER granting 45 Motion to Dismiss for Failure to State a Claim; granting 45 Motion to Dismiss for Lack of Jurisdiction; granting 27 Motion to Dismiss For the reasons stated, the defendants motions to dismiss are granted and the complaint is dismissed in full. The Clerk of Court is directed to enter judgment, terminate any pending motions, and close this case. Ordered by Chief Judge Carol Bagley Amon on 3/29/2012. c/m to pro se plaintiff. (Shnider, Ruth)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISTOPHER GORDON,
Plaintiff,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
10-CV-3706 (CBA)(LB)

-against-

THE CITY OF NEW YORK POLICE DEPARTMENT
84th PRECINCT;NEW YORK CITY POLICE OFFICER
CARLOS PERALTA, SHIELD NO. 30640; U.S.
DEPARTMENT OF HOMELAND SECURITY
IMMIGRATION AND CUSTOMS ENFORCEMENT;
AGENT BOYCE T.; AGENT SANTIAGO E.,
Defendants.
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AMON, Chief United States District Judge.
Plaintiff Christopher Gordon (“Gordon”), pro se, has filed suit pursuant to the Vienna
Convention on Consular Relations (“VCCR”), the Alien Tort Statute (“ATS”), and 42 U.S.C. §
1983, alleging that the defendants deprived him of the right to consular access granted under
Article 36(1)(b) of the VCCR. The defendants have moved to dismiss the complaint in full,
arguing principally that the VCCR does not create a judicially enforceable individual right that
may be vindicated in a damages action, that the NYPD is not a suable entity, and that the Court
lacks subject matter jurisdiction over the claims against U.S. Immigration and Customs
Enforcement. For the reasons stated below, the defendants’ motions are granted, and the
complaint is dismissed in full.

I.

BACKGROUND
The Court is able to discern the following allegations in the Amended Complaint and in

Gordon’s opposition to the defendants’ motions. New York City Police Department (“NYPD”)
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Officer Peralta, from the 84th Precinct, arrested Gordon on November 2, 2007 for suspected
check fraud. Following his arrest and processing, Gordon, a citizen of Trinidad and Tobago,
claims that Officer Peralta did not inform him of his right to contact his consular office and
denied Gordon the ability to contact his consular office after Gordon so requested. Gordon
claims he was held at Central Booking until November 4, 2007, and that the case against him
was dismissed at that time.
On September 23, 2008, Gordon was re-arrested on the same charges, and was arraigned
on September 25, 2008. During Gordon’s detainment on Rikers Island, he alleges that Agent
Boyce of Immigration and Customs Enforcement (“ICE”) interviewed him on September 27,
2008. Gordon claims that Agent Boyce also did not inform him of his right to consular access
and denied Gordon the ability to contact his consular office after Gordon requested it.
Gordon was eventually convicted and transferred on November 26, 2009 to the Ulster
Correctional Facility, where he was interviewed by ICE Agent Santiago. Gordon claims that
Agent Santiago denied his request to contact the consul and stated that “it was too late for
Plaintiff to do so.” (Compl. at 4).
Gordon states that Immigration Judge Roger Sagerman issued a deportation order against
him on February 16, 2011, which Gordon claims he is appealing. Gordon states that the lack of
consular access prevented his ability to challenge the arrests, prosecution, and subsequent
deportation. (Compl. at 7-9.) He seeks a total of $3 million as “as just compensation for the
damages caused by the International violations of both State and Federal Law.” (Compl. ¶ 38.)
Both the federal and city defendants have moved to dismiss in separate submissions. As
the motions involve substantially overlapping arguments, they can largely be addressed together.
The Court also notes that Gordon has filed a separate case under docket number 10-cv-5148-

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CBA-LB against several defendants, including Officer Peralta and the City of New York,
alleging false arrest, malicious prosecution and other deprivations of constitutional rights arising
out of the same arrests and conviction detailed above.1 Gordon has had ample opportunity to air
his arrest- and prosecution-related constitutional claims in the other action, and insofar as this
complaint alludes to or attempts to duplicate those claims, they will not be addressed here. The
Court will therefore limit its construction of this complaint primarily to alleged violations of
Article 36 of the VCCR.

II.

STANDARD OF REVIEW
To withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains only “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Neither will a complaint that contains only “naked assertion[s]”
without “further factual enhancement.” Id. at 557.
Iqbal identifies a “two-pronged” approach to determining the sufficiency of a complaint.
129 S. Ct. at 1950. First, courts can “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Id. Second, they can then
identify whether the complaint, stripped of its conclusory pleadings, “plausibly give[s] rise to an
entitlement to relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the

1

The Court has addressed in a separate opinion a motion to dismiss the complaint in that action. See Gordon v. City
of New York, 10-cv-5148 (docket entry #45).

3

misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A court’s
consideration on a motion to dismiss is “limited to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40,
44 (2d Cir. 1991).
Finally, the Court is mindful that “[a] document filed pro se is to be liberally construed
and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir.
2008)(quoting Erickson v. Pardus, 551 US 89, 94 (2007)). Accordingly, the Court must construe
pro se complaints “to raise the strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d
241, 248 (2d Cir. 2006)(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However,
“[t]he duty to liberally construe a [pro se] plaintiff's complaint is not the equivalent of a duty to
rewrite it.” Kirk v. Heppt, 532 F.Supp.2d 586, 590 (S.D.N.Y.2008) (internal quotation marks
and alterations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(“[T]hough we are obligated to draw the most favorable inferences that [a pro se] complaint
supports, we cannot invent factual allegations that he has not pled.”)

III.

DISCUSSION
A. The VCCR and § 1983
Fundamental to this dispute, Gordon alleges that the defendants violated his rights under

the Vienna Convention on Consular Relations by denying him access to the consular office of
Trinidad and Tobago. He appears to bring the action directly under the treaty and through 42

4

U.S.C. § 1983. In a prior order, pursuant to 28 U.S.C. § 1915A(b), this Court dismissed
Gordon’s claims arising from the defendants’ alleged failure to inform him of his right of
consular access and notification. See Gordon v. City of New York Police Dept., 2010 WL
4738694 (E.D.N.Y. 2010); Mora v. New York, 524 F.3d 183, 188 (2d Cir. 2008) (holding that
“Article 36’s obligation to inform detained aliens of the prospect of consular notification and
access cannot, when violated, be vindicated by a private action for damages in our courts.”). The
Court did not decide at that time, however, “whether plaintiff’s allegations related to the failure
to notify consular officials of his detention upon request state a claim upon which relief may be
granted.” Id. at *2 (emphasis added). Thus, the principal question presented on this motion is
whether an individual right to bring a damages claim exists when a detained foreign national
specifically requests notification of his or her consulate and that request is denied. For the
reasons stated below, the Court believes that the guidance provided in Mora and in the holdings
of other circuits leads to the conclusion that no enforceable individual right exists when a person
requests consular notification and does not receive it.
The VCCR is intended to “contribute to the development of friendly relations among
nations.” Medellin v. Texas, 552 U.S. 491, 499 (2008) (quoting 21 U.S.T., 77, 79). Trinidad and
Tobago and the United States are both signatories to the treaty. T.I.A.S. No. 6820, 21 U.S.T. 77,
1969 WL 97928 (U.S. Treaty). Article 36, the provision relied upon by Gordon, provides:
1. With a view to facilitating the exercise of consular functions relating to
nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State shall
have the same freedom with respect to communication with and access to
consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its
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consular district, a national of that State is arrested or committed to prison
or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in
prison, custody or detention shall also be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned without
delay of his rights under this sub-paragraph
(c) consular officers shall have the right to visit a national of the sending
State who is in prison, custody or detention, to converse and correspond with
him and to arrange for his legal representation. They shall also have the right
to visit any national of the sending State who is in prison, custody or
detention in their district in pursuance of a judgment. Nevertheless, consular
officers shall refrain from taking action on behalf of a national who is in
prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in
conformity with the laws and regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations must enable full effect to
be given to the purposes for which the rights accorded under this Article are
intended.
21 U.S.T. at 101-102 (emphasis added). In both Medellin v. Texas, 552 U.S. 491, 506 n. 4
(2008) and Sanchez–Llamas v. Oregon, 548 U.S. 331, 343 (2006), the Supreme Court assumed
without deciding that Article 36 creates judicially enforceable individual rights.
In Mora, the Second Circuit closely examined the question of individual rights under the
VCCR, and thus whether a plaintiff could state a damages claim, either under the treaty itself or
through § 1983, for an alleged VCCR violation. See Mora, 524 F.3d at 199 n.23; Gonzaga v.
Doe, 536 U.S. 273, 283-85 (2002) (plaintiff must demonstrate that federal law in question
confers individual right in order to bring suit pursuant to § 1983). There, an incarcerated citizen
of the Dominican Republic asserted a claim based on the arresting officers’ failure to notify him
of his consular rights under Article 36. Mora, 524 F.3d at 191. Separating out the three
sentences contained in Article 36(1)(b), the court held that no individual right to bring a damages
action existed under Article 36(1)(b)(third), the third sentence, which provides that “authorities
shall inform the person concerned without delay of his rights under this sub-paragraph.” Id. at
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209. Although panel declined to “consider whether a detaining authority's refusal to comply
with the first set of requirements of Article 36(1)(b)—by refusing to notify the consulate at the
request of the detained alien—would present . . . circumstances” in which “courts could
entertain an individual right of action,” id. at 187 n.4, the reasoning of that opinion supports the
proposition that no such private right of action exists.
In support of its conclusion that “Article 36's obligation to inform detained aliens of the
prospect of consular notification and access cannot, when violated, be vindicated by a private
action for damages filed in our courts,” the Mora court drew from several sources and principles
that are highly relevant here. Id. at 188.
First, in examining the VCCR itself, the Mora court discussed the “presumption that
treaties do not create privately enforceable rights in the absence of express language to the
contrary,” and found that the text of the VCCR did not furnish a clear statement to overcome that
presumption. Id. at 188; see also Medellin, 552 U.S. at 506 n.3 (“Even when treaties are selfexecuting . . . the background presumption is that [i]nternational agreements, even those directly
benefiting private persons, generally do not create private rights or provide for a private cause of
action in domestic courts.” (internal quotation marks omitted)). The court observed that
“[n]othing in [the treaty’s] text explicitly provides for judicial enforcement of [its] consular
access provision at the behest of private litigants,” and opined that “the lack of any mention in
the text of Article 36(1)(b) as to whether or how detained foreign nationals might vindicate their
asserted rights at least suggests that the drafters of the Convention did not intend to confer rights
directly upon individuals.” Id. at 194 (quoting United States v. Li, 206 F.3d 56, 66 (1st Cir.
2000) (en banc) (Selya & Boudin, JJ., concurring)); see also Sanchez-Llamas, 548 U.S. at 347
(“[W]here a treaty does not provide a particular remedy, either expressly or implicitly, it is not

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for the federal courts to impose one on the States through lawmaking of their own.”). The court
also noted that “there are a number of ways in which the drafters of the Vienna Convention, had
they intended to provide for an individual right, . . . could have signaled their intentions to do
so.” Mora, 524 F.3d at 203 (collecting treaty sources providing for individually enforceable
rights).
Acknowledging that Article 36 refers to the “rights” of a detained person, the court
nonetheless reasoned that “the Supreme Court has on several occasions rejected the argument
that references to the ‘rights’ of persons potentially benefited by legislation . . . necessarily
support the view that the legislation creates rights in individuals that can be enforced by those
individuals through mechanisms such as a § 1983 action or an implied private right of action.”
Id. at 195 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 289 n.7 (2002); Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 18-20 (1981)).
Considering the broader text and context of the treaty, the court also noted a portion of
the preamble stating that “the purpose of [these consular] privileges and immunities is not to
benefit individuals but to ensure the efficient performance of functions by consular posts on
behalf of their respective States.” 21 U.S.T. at 79. The court found that this statement and other
preamble passages “suggest that the rights created by the Convention . . . belong to, and should
generally be enforced by, the States-parties to the Convention and their official representatives.”
Mora, 524 F.3d at 197. Corroborating this inference was the fact that judicial enforcement of an
individual right to consular notification and/or access had not been recognized by the other
signing states. Id. at 189 n.5. (“‘With one possible exception,’ the State Department was unable
to identify any country in which an individual litigant could sue for money damages for violation
of the consular notification and access provisions in Article 36.”). Further, the court noted that

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the Optional Protocol Concerning the Compulsory Settlement of Disputes, “[a]lthough expressly
designed to implement the terms of the Convention, . . . makes no mention of private actions by
detained individuals,” but instead provides that disputes arising out of the Convention may be
brought before the ICJ by a State-party. Id. at 197 (citing 21 U.S.T. at 326). The panel also
explained various mechanisms, other than individual actions for damages, through which
compliance with the treaty’s provisions can be achieved. Id. at 197-99.
Finally, the panel placed “great weight” on the interpretation offered by the Executive
branch of the United States, “that the Vienna convention ‘do[es] not create domestically
enforceable federal law.’” Id. at 204 (quoting Medellin, 552 U.S.at 513); see also Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982) (“Although not conclusive, the
meaning attributed to treaty provisions by the Government agencies charged with their
negotiation and enforcement is entitled to great weight.”). Indeed, as other courts have noted,
“the [State] Department has repeatedly asserted that ‘the only remedies for failures of consular
notification under the Vienna Convention are diplomatic, political, or exist between states under
international law,’ and that ‘[t]he right of an individual to communicate with his consular official
is derivative of the sending state’s right to extend consular protection to its nationals.’” Cornejo
v. County of San Diego, 504 F.3d 853, 862 (9th Cir. 2007) (quoting United States v.
Emuegbunam, 269 F.3d 377, 392 (6th Cir. 2001); United States v. Li, 206 F.3d 56, 63 (1st Cir.
2000)).
In sum, while limiting its actual holding to the third clause of Article 36(1)(b), the
Second Circuit relied on VCCR language, context, and practice which also support the
conclusion that there is no individual right to bring a damages action for an alleged violation of
the first clause.

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This modest extension of Mora is supported by the holdings of other circuits. Notably,
the 11th Circuit, when faced with an almost identical fact pattern, held that Article 36 does not
create individual rights, even where the individual affirmatively requests consular notification.
Gandara v. Bennett, 528 F.3d 823 (11th Cir. 2008). There, an Uruguayan man brought suit
under § 1983 alleging that he was not informed of his right to contact his consulate, and that the
defendants “subsequently denied his specific request that he be allowed to contact his
consulate.” Id. at 825. The 11th Circuit, following a rubric similar to Mora, discussed how the
treaty’s text and context, as well as the interpretation offered by the Executive, all led to the
conclusion “that the Vienna Convention does not confer enforceable individual rights.” Id. at
829.
The Ninth Circuit, although not specifically addressing a fact pattern involving an
affirmative request for consular notification, has concluded that Article 36, as a general matter,
does not confer an individual right actionable in a damages claim. See Cornejo v. County of San
Diego, 504 F.3d 853, 855 (9th Cir. 2007) (“We agree with the district court that Article 36 does
not create judicially enforceable rights. . . . [T]he right to protect nationals belongs to States
party to the Convention; no private right is unambiguously conferred on individual detainees
such that they may pursue it through § 1983.”).
The Fifth and Sixth Circuits, albeit in the criminal context, have concluded broadly “that
the Vienna Convention does not create a right for a detained foreign national to consult with the
diplomatic representatives of his nation that the federal courts can enforce.” United States v.
Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001); see United States v. Jimenez-Nava, 243 F.3d
192, 196-98 (5th Cir. 2001) (“The sum of Jimenez–Nava's arguments fails to lead to an
ineluctable conclusion that Article 36 creates judicially enforceable rights of consultation

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between a detained foreign national and his consular office. Thus, the presumption against such
rights ought to be conclusive.”). Notably, the Sixth Circuit observed that “the Supreme Court
has twice held that the Vienna Convention does not provide a signatory nation a private right of
action in the federal courts to seek a remedy for a violation of Article 36. If a foreign sovereign
to whose benefit the Vienna Convention inures cannot seek a judicial remedy, we cannot fathom
how an individual foreign national can do so in the absence of express language in the treaty.”
Emuegbunam, 268 F.3d at 394 (citing Federal Republic of German v. United States, 526 U.S.
111 (1999); Breard v. Greene, 523 U.S. 371 (1998)).
In opposition, Gordon refers to holdings in the Seventh Circuit and the International
Court of Justice (“ICJ”) that Article 36 does convey individual rights. See Jogi v. Voges, 480
F.3d 822, 834-35 (7th Cir.2007) (concluding that “Article 36 confers individual rights on
detained nationals”); Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004
I.C.J. 12 (Mar. 21). These opinions, however, are neither controlling nor persuasive. The
Seventh Circuit Jogi opinion concluded that “Article 36 of the Vienna Convention by its terms
grants private rights to an identifiable class of persons-aliens,” including an individual right to be
informed of the prospect of consular notification. Jogi, 480 F.3d at 824, 835. The opinion is
therefore directly contrary to Mora, and the Seventh Circuit appears to be currently in a minority
of one among the circuit opinions on the subject. Jogi, 480 F.3d at 824.2 Additionally, the
Second Circuit explicitly considered Avena and concluded that the brief views of the ICJ on this
question were not persuasive. Mora, 524 F.3d at 205-07.

2

Gordon also cites Standt v. City of New York, 153 F.Supp.2d 417, 427 (S.D.N.Y. 2001), where the court held that
“Article 36 of the Vienna Convention was intended to provide a private right of action to individuals detained by
foreign officials” and allowed a similar § 1983 claim to survive summary judgment. However, that case pre-dated
Mora, and this Court does not believe that its holding can withstand later case law developments.

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Adhering to the guidance provided in Mora and other circuit opinions results in the
conclusion that Article 36’s directive that detaining officials shall notify a consular office upon
an alien’s request cannot, when violated, be vindicated by a private action for damages filed in
our courts. Thus, any claims asserted by Gordon which stem from this asserted violation of the
VCCR, brought either directly under the treaty or through § 1983, are dismissed.

B. The Alien Tort Statute
In addition to the VCCR and § 1983 claims, Gordon asserts a cause of action under the
Alien Tort Statute, 28 U.S.C. § 1350. The ATS provides that “[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.” 28 U.S.C. § 1350. “[T]he ATS is a jurisdictional
statute [that] also grants the power to recognize ‘private causes of action for certain torts in
violation of the law of nations.’” Mora, 524 F.3d at 208 (quoting Sosa v. Alvarez, 542 U.S. 692,
724 (2004)). Because the Court has already concluded that Gordon may not state a claim under
the treaty itself, his ATS claim may only proceed if he has met the stringent requirements for
recognizing a customary international law tort. As in Mora, where the court found that a
detention paired with a violation of 36(b)(1)(third) was not actionable under the ATS, the Court
concludes that Gordon has not shown that the defendants’ conduct in this case amounted to a tort
in violation of the law of nations.
The number of actionable torts under the ATS is very limited. “To provide a cause of
action under the ATS, a customary international law tort must meet a high bar for recognizing
new causes of action: it must be both specific and well-accepted.” Mora, 524 F.3d at 208
(internal quotations omitted). Any such claim must “rest on a norm of international character
accepted by the civilized world and defined with a specificity comparable to the features of the
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18th-century paradigms” of violation of safe conducts, offenses against ambassadors, and piracy.
Sosa, 542 U.S. at 725.
Relying upon the standards set forth by the Supreme Court in Sosa, the Mora panel held
that the plaintiff had not met this difficult test—in particular, he had not demonstrated that the
proposed tort was “well-accepted” in the international community. Mora, 524 F.3d at 208
(noting that plaintiff had pointed to “no sources which evince support for the specific customary
international law tort proposed here—detention without being informed of the availability of
consular notification and access.”). Notably, as referenced above, it appears that virtually none
of the States-parties to the VCCR have recognized a tort cause of action premised on consular
notification and access rights. Id. at 188 n.5 & 209. Furthermore, the act of not informing a
consulate upon request is not “so bad that those [who engage in this conduct] become enemies of
the human race.” Id. (quoting Sosa, 542 U.S. at 737). Gordon has not pointed to any evidence to
rebut these conclusions.
In sum, there does not appear to be any reason to depart from Mora when the potential
tort is based upon a failure to contact the consulate upon request, as opposed to failing to inform
the detainee of the availability of consular notification and access. In each instance, “it cannot be
said that the tort proposed has ‘attained the status of a binding customary norm.’” Id. at 209
(quoting Sosa, 542 U.S. at 737). Accordingly, Gordon’s claim under the ATS is dismissed.

C. 42 U.S.C. § 1985(3)
In his opposition papers, Gordon cursorily asserts that the defendants violated his rights
under 42 U.S.C. § 1985(3). “The four elements of a § 1985(3) claim are: (1) a conspiracy; (2)
for the purpose of depriving, either directly or indirectly, any person or class of persons of equal
protection of the laws, or of equal privileges and immunities under the laws; (3) an act in
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furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right of a citizen of the United States.” Mian v. Donaldson, Lufkin & Jenrette
Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993); see also Cine SK8, Inc. v. Town of Henrietta,
507 F.3d 778, 790 (2d Cir. 2007). In addition, the plaintiff must show that the alleged
conspiracy was “motivated by some racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators' action.” Thomas v. Roach, 165 F.3d 137, 146 (2d
Cir.1999) (internal quotation marks omitted). Mere conclusory allegations that a conspiracy took
place, without any factual basis evidencing a “meeting of the minds,” will warrant dismissal of a
§ 1985 claim. Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003).
Here, Gordon makes only unsupported suppositions that a conspiracy among the
defendants took place. These statements are insufficient to survive a motion to dismiss. See
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (“[A] complaint containing only
conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.”); Sajimi v. City of New York, 2011 WL 135004, at
*7 (E.D.N.Y. 2011). Moreover, Gordon’s only evidence of discriminatory animus is the
assertion in his brief that he is an alien of minority race.
Accordingly, any § 1985 claim is dismissed. In addition, to the extent Gordon’s papers
contain fleeting references to any other theory of discrimination claim, he has offered nothing
beyond his own speculation that he was discriminated against on the basis of race or national
origin, and any such claim must be dismissed.

D. The Agency Defendants
Gordon has also brought suit against the individual defendants’ overseeing agencies: the
NYPD and ICE. Though these claims must be dismissed for the reasons stated above, the Court
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observes that even if Gordon were asserting a viable individual right, these claims would
nonetheless be subject to dismissal.
The New York City Police Department and the 84th Precinct are non-suable entities.
“Under New York law, departments which are merely administrative arms of a municipality do
not have a legal identity separate and apart from the municipality and cannot sue or be sued.”
Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002); see also New York City
Charter, Ch. 17, § 396; Lauro v. Charles, 219 F.3d 202, 205 n.2 (noting that city police
department is a non-suable entity); Wilson v. City of New York, 800 F. Supp. 1098, 1101
(E.D.N.Y. 1992).
Even if this claim were properly brought against the City of New York, it could not stand.
In order to sustain a claim for relief under § 1983 against a municipal defendant, a plaintiff must
show the existence of an officially adopted policy or custom, and a direct causal connection
between that policy or custom and the deprivation of a federal right. See Bd. of County
Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997). “Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal policy, which can be
attributed to a municipal policymaker.” City of Oklahoma v. Turtle, 471 U.S. 808, 823-24
(1985). Said another way, the plaintiff must demonstrate that the municipality was the “moving
force” behind the alleged injury. Brown, 520 U.S. at 404.
Here, Gordon’s complaint only cursorily hypothesizes that had the NYPD provided more
information to Officer Peralta about his obligations under the VCCR, the alleged injury would
not have occurred. Moreover, Gordon’s allegations are unsupported by anything other than the

15

facts of what occurred in his own particular case. These statements are insufficient to state a
claim of municipal liability under Monell.
As to any of Gordon’s claims brought against a federal agency,3 the Court lacks subject
matter jurisdiction. “Absent a waiver, sovereign immunity shields the Federal Government and
its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994); see Diaz v. United States,
517 F.3d 608, 611 (2d Cir. 2008). Any waiver of sovereign immunity must be explicit. Id.
Here, Gordon has not alleged any waiver by ICE, DHS, or any other federal entity for damages
claims of the sort he seeks to bring here.
Finally, the Court notes that to the extent Gordon fleetingly indicates that he is bringing a
claim against the United States pursuant to the Federal Torts Claims Act, he has not provided
any indication that he satisfied the jurisdictional exhaustion requirement for such a claim. See 28
U.S.C. §§ 2401(b), 2675(a); McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA
bars claimants from bringing suit in federal court until they have exhausted their administrative
remedies.”).
Accordingly, any claims against the agency defendants are dismissed.

3

Gordon identifies the Department of Homeland Security and U.S. Immigration and Customs Enforcement as one
entity: “U.S. Department of Homeland Security Immigration and Customs Enforcement.”

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IV.

CONCLUSION
For the reasons stated, the defendants’ motions to dismiss are granted and the complaint

is dismissed in full. The Clerk of Court is directed to enter judgment, terminate any pending
motions, and close this case.

SO ORDERED.
Dated: Brooklyn, New York
March 29, 2012
_____________/s/_______________
Carol Bagley Amon
Chief United States District Judge

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